Clarence C. Blankenship v. W. Va. Office of Insurance Commissioner/C & G Leasing, Inc. ( 2013 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
CLARENCE C. BLANKENSHIP, December 20, 2013
RORY L. PERRY II, CLERK
Claimant Below, Petitioner SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs.) No. 12-0447 (BOR Appeal No. 2046425)
(Claim No. 960020718)
WEST VIRGINIA OFFICE OF
INSURANCE COMMISSIONER
Commissioner Below, Respondent
and
C & G LEASING, INC.,
Employer Below, Respondent
MEMORANDUM DECISION
Petitioner Clarence C. Blankenship, by John C. Blair, his attorney, appeals the decision of
the West Virginia Workers’ Compensation Board of Review. The West Virginia Office of
Insurance Commissioner, by Brandolyn N. Felton-Ernest, its attorney, filed a timely response.
This appeal arises from the Board of Review’s Final Order dated March 23, 2012, in
which the Board affirmed a September 2, 2011, Order of the Workers’ Compensation Office of
Judges. In its Order, the Office of Judges affirmed the claims administrator’s December 29,
2010, Order denying Mr. Blankenship’s request for permanent total disability benefits. The
Court has carefully reviewed the records, written arguments, and appendices contained in the
briefs, and the case is mature for consideration.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Mr. Blankenship worked as a mechanic for C & G Leasing, Inc. when he sustained an
injury to his back on October 10, 1995. Dr. Guberman found in May of 2000 that Mr.
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Blankenship had a 12% impairment for the lumbar spine, an 8% impairment for the thoracic
spine, a 2% impairment for the loss of sensation in the right leg, and a 20% impairment for
sexual dysfunction. Mr. Blankenship submitted a request for permanent total disability on June 9,
2003. The claims administrator denied Mr. Blankenship permanent total disability benefits
because he failed to meet the whole person medical impairment threshold.
The Office of Judges held that Mr. Blankenship had not met the required 40% whole
person impairment threshold of West Virginia Code § 23-4-6(n) (1999). Mr. Blankenship
disagrees and asserts that he has an overall combined whole person impairment rating of 48%,
which clearly meets the 40% threshold. The West Virginia Office of Insurance Commissioner
maintains that Mr. Blankenship’s whole person impairment is 33%, which does not meet the
requisite 40% threshold. Dr. Forberg in his November 6, 2003, report recommended a 2%
impairment for the right knee, and a 14% impairment for the lumbar spine for a combined total
of 16% impairment. The Permanent Total Disability Review Board noted that Dr. Walker
recommended 9% whole person impairment for sexual dysfunction, and that 9% combined with
the 26% whole person impairment previously found by the Permanent Total Disability Review
Board was a total of 33% whole person impairment.
The Office of Judges concluded that the Permanent Total Disability Review Board has
the statutory authority to make a decision based on impairment regardless of the amount of
permanent partial disability award that has been granted to Mr. Blankenship. The Office of
Judges found that the Permanent Total Disability Review Board’s recommendation of a total of
33% whole person impairment is supported by the overall medical record, and therefore, Mr.
Blankenship has not demonstrated that he met the 40% whole person impairment threshold of
West Virginia Code § 23-4-6(n) (1999). The Board of Review reached the same reasoned
conclusions in its decision of March 23, 2012. We agree with the reasoning and conclusions of
the Board of Review.
For the foregoing reasons, we find that the decision of the Board of Review is not in clear
violation of any constitutional or statutory provision, nor is it clearly the result of erroneous
conclusions of law, nor is it based upon a material misstatement or mischaracterization of the
evidentiary record. Therefore, the decision of the Board of Review is affirmed.
Affirmed.
ISSUED: December 20, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin J. Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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